The opinion of the court was delivered by: MOSCOWITZ
MOSCOWITZ, District Judge.
Mills Novelty Company, the complainant herein, seeks to enjoin the commissioner of police of the police department of the city of New York, and the deputy chief inspector of the police department of the city of New York, from unlawful interference with mint venders, known as "Mills Non-Convertible Venders," owned and leased by the complainant within the city of New York and within the jurisdiction of this court.
Judge Thomas, in the case of Mills Novelty Company v. Farrell, 3 F. Supp. 555, in the United States District Court, District of Connecticut, made a final decree on March 10, 1933, perpetually enjoining and restraining the chief of police of the police department of the city of Hartford, state of Connecticut, from seizing or destroying complainant's vending machines used for the sale of complainant's mints, and from arresting the possessors of such machines, and also from intimidating the possessors of such machines. Judge Thomas, in an opinion filed March 1, 1933, in that action, decided that the machines in question are not gambling devices per se.
The decree entered by Judge Thomas was unanimously affirmed by the Circuit Court of Appeals, Second Circuit, in an opinion dated April 17, 1933, 64 F.2d 476, 477. The Circuit Court of Appeals decided:
"The machine may not be interfered with or changed in any way so as to convert it into a gambling machine as was the case in Triangle Mint Corp. v. Mulrooney, 232 App. Div. 783, 248 N.Y.S. 880. This machine has a stationary prong riveted to the end of the escalator head and a spring which is completely covered by a metal housing and is attached to a hole in the rear portion of the said prong so that all coins go into the cash box, and they cannot possibly be ejected from the machine. This metal housing can be removed only by the use of a hammer which would result in the destruction of the machine. Many of the machines have been sold and are in use. Similar vending machines ejecting tokens have been held by the courts in other jurisdictions not to constitute a gambling device. Ashcraft v. Healey, 23 F.2d 189 (C.C.A. 5); People v. Jennings, 257 N.Y. 196, 177 N.E. 419; Overby v. Oklahoma City, 46 Okl. Cr. 42, 287 P. 796. One may not suppose that a person desiring to gamble would put up money in the hope of obtaining tokens which can be used only to produce insignificant humorous sayings. The amusement feature of the machine does not make the machine a gambling device. It arouses interest and perhaps attracts customers to the machine in much the same way as advertising would, but this is lawful.
"The bill of complaint and the admissions sufficiently show interference by the appellant which warrants the injunction prayed for. Iowa-Des Moines Nat. Bank v. Bennett, 284 U.S. 239, 52 S. Ct. 133, 76 L. Ed. 265; Bandini Petroleum Co. v. Superior Court, 284 U.S. 8, 52 S. Ct. 103, 76 L. Ed. 136; Smith v. Cahoon, 283 U.S. 553, 51 S. Ct. 582, 75 L. Ed. 1264."
Judge Thomas appeared as a witness before this court and testified that the machine in this action is identical with the machine which he had before him in Mills Novelty Company v. Farrell, supra. An examination of the machine, as well as the testimony in this case, indicates quite clearly that Judge Thomas was correct in that statement.
The corporation counsel of the city of New York, representing the defendants herein, conceded that the machines in question are not gambling devices per se, as evidenced by the following which took place at the trial:
"The Court: Get back to my question which has not been answered. You say that the Police Commissioner has issued an order, that they are not going to interfere with these machines?
"The Court: You make this statement in court that he will not interfere with the machines?
"The Court: That is because in your judgment, and in the judgment of the Police Commissioner, the particular ...